The law on privacy may have to be redrawn to keep up with rapid advances in modern technology and the rise of social media, the country’s most senior judge has said.
Lord Neuberger, the president of the UK Supreme Court, said “astonishing developments” in computing meant it was now possible to record someone in secret and immediately transmit it to the world, a situation which posed “enormous challenges” for lawmakers.
“These developments may make it inevitable that the law on privacy, indeed, the law relating to communications generally, may have to be reconsidered. It undermines the rule of law if laws are unenforceable,” the judge said in a speech at the Hong Kong Foreign Correspondents’ Club.
Britain currently has no specific domestic legislation governing privacy as such, but cases brought by celebrities and others to prevent information about them being made public are often based on the European Convention on Human Rights, which contains a clause about the “right to private and family life”. The Convention rights were applied directly in the UK by the Human Rights Act 1998.
Lord Neuberger did not go into detail about whether he was advocating the creation of a dedicated law on privacy, and a spokeswoman for the Supreme Court said she was unable to elaborate further.
The judge also raised the prospect of televised court cases, such as the recent murder trial of Olympic athlete Oscar Pistorius, becoming commonplace in Britain. “Open justice is not just about the courts being open to visitors physically. I think that there is a strong case for saying that they should be televised: that is merely the modern extension of enabling the public to enter the courts physically,” he said.
He added that concerns about the possible intimidation of witnesses and juries and about witnesses and lawyers playing to the gallery would have to be addressed before cameras were introduced. While he said the 1994 trial of former American football player OJ Simpson “may have been a lesson in how not to do it”, he said he had found the filming of the Pistorius trial “impressive”.
Lord Neuberger’s views put him at odds with Lord Thomas, the Lord Chief Justice, who has called for a “pause” in Britain’s rush to televise court proceedings due to concerns raised by the broadcast of the Pistorius trial. “I have been very troubled by what has happened in South Africa,” he told the House of Lords Constitution Committee in May.
Currently only cases heard by the Court of Appeal and the Supreme Court can be shown on television, although recent changes in the law have raised the possibility that the sentencing remarks of judges sitting in the Crown Courts could also be recorded.
Sadiq Khan, Labour’s shadow Justice Secretary, said: “Lord Neuberger is the President of the Supreme Court, so his concerns that laws affecting people’s privacy aren’t keeping pace with changes in technology are noteworthy.
“The Human Rights Act already has a right to privacy which is balanced against another important right also contained in the Human Rights Act; freedom of speech. Whilst it is important for the law to keep pace with technological advances and loopholes we mustn’t lost sight of these basic fundamental rights.”
Rachael Jolley, of the free speech group Index on Censorship, added: “We should always be concerned that privacy laws must not be used to allow the rich and powerful to hide information from the public that should be accessible and transparent. The public’s right to hold the powerful to account should be at the heart of any change in this type of legislation, such as the privacy laws that Lord Neuberger appears to be suggesting here.”
Expanding on his theme of open justice, Lord Neuberger said that it was important for judges to remember who they were writing for when they handed down judgements, saying that some were so complex that understanding them posed a “formidable task” even for experienced lawyers.
“We judges owe it to the public, at least in cases which are important or have excited wide interest, to ensure that our decision and essential reasoning are as comprehensible as possible to the public. In such cases, there is a great deal to be said for the court providing a summary of the decision, expressed in clear and simple language,” he said.
Privacy and celebrity
In 2011, the Manchester United player was at the centre of a row over the use of super-injunctions to protect privacy, after thousands of people posted messages on Twitter identifying him as the footballer alleged to have had an affair with model Imogen Thomas despite its being illegal for newspapers to do so.
The Duke and Duchess of Cambridge launched a legal action against the French magazine Closer in 2012 after it published topless pictures of the Duchess while the royals were on holiday in France. No British paper published the photos, which the couple said were a breach of their privacy, but they were widely circulated online.
Naked pictures of him alongside a girl at a party in a Las Vegas hotel room were published by US gossip website TMZ in 2012, after being taken on a camera phone. Clarence House said publication of the photos by a British newspaper would constitute a breach of privacy – but The Sun eventually printed them, citing their wide availability online as a defence.